For now, a 2015 Colorado Supreme Court ruling about the reach of Colorado’s legal off-duty activity statute will remain the law of the land. Last Thursday, the House Business Affairs and Labor Committee unanimously killed a bill aiming to overturn the decision and would have barred employers from firing workers from using marijuana in their off time.
A law already exists that bans employers’ ability to fire employees for legal activity off the job. House Bill 1089 sought to clarify that the law would apply to state-legal activity that’s illegal under federal law. The bill’s language isn’t limited to marijuana use, but sponsor Rep. Jovan Melton has said it intended to overturn a 2015 Colorado Supreme Court decision.
In Coats v. Dish Network, the court found the lawful activity statute didn’t protect marijuana use. The decision upheld Dish Network’s firing of Brandon Coats for his medical marijuana use away from work. Melton previously told Law Week the decision seemed to hand the issue back to the legislature to clarify what ‘illegal’ refers to in the lawful activity statute.
Opposition to House Bill 1089 lingered from business groups despite the bill sponsors’ attempts to clarify that employers could still bar marijuana use for legitimate job-related reasons or fire employees for poor performance. Melton also tried to make clear the bill wouldn’t have overridden bans on marijuana use among federal contractors in Colorado.
“This bill is fairly simple. It’s changing state law to define that ‘lawful’ [refers to] state law,” Melton told the committee. “That’s what we do. That is the power of the General Assembly.”
Still, business groups that testified against the bill worried about their exposure to litigation over firing an employee. They also said the bill went against Amendment 64’s statement that legalizing marijuana doesn’t require employers to accommodate employees’ marijuana use or limit their ability to test for drugs.
Much of the testimony both for and against House Bill 1089 focused on the inability of drug tests to discern a person’s actual impairment from marijuana based on THC detection in their system. Business groups said their members believe the bill could open them up to challenges of their drug testing methods’ validity. But those who supported the bill said the drug tests’ unreliability makes basing employment decisions on marijuana use unfair anyway.
Coats, the plaintiff in the landmark Colorado Supreme Court case, testified that using medical marijuana has allowed him to work. Coats is mostly paralyzed because of a 1996 car accident and uses marijuana to control muscle spasms. He consistently performed at the top of his department at Dish Network, he said, and he does not believe the company would have fired him if not for a failed drug test because of his medical marijuana use.
“I think that we need to change the law to allow people like me to be able to work and be productive in society,” he said.
Rep. Marc Snyder, a Democrat from El Paso County, spoke up the most during the hearing. He peppered both supporters and opponents of the bill with questions to tease out his understanding of the bill’s necessity and its consequences. He wanted to know how often employees are fired for their marijuana use to the accuracy of drug testing to measure impairment by marijuana.
Snyder seemed unsure about the necessity of the bill given the lack of concrete data on how often employees are fired for off-duty marijuana use, which Melton admitted at the beginning of the hearing isn’t collected. An employment lawyer who testified in favor of the bill said “hundreds” of employees find themselves in that type of situation, but she told Snyder her reading of how frequently it happens is anecdotal based on her 25 years of practice in Colorado.
When Snyder spoke at the end of the hearing to say he would vote against House Bill 1089, his tone echoed a conflicted sentiment expressed by other committee members who also announced they didn’t support it: They do think the possibility of employees getting fired for off-duty marijuana use is a problem, but they didn’t believe the bill as laid out was the best way to address it because of the potential confusions for employers.
Snyder said at the end of the day, employers just want consistent guidance for what they can and can’t do. The federal illegality of marijuana remained a sticking point for Snyder and he said to him, it means marijuana still isn’t legal activity the law could protect. He said he also hesitated to interfere with Amendment 64’s stipulation that marijuana legalization doesn’t limit employers’ ability to test workers for marijuana.
“If we were to … pass this bill, I think it would become legally untenable. A lot of businesses would be open to, quite frankly, a legal mess.”
—Julia Cardi